United States v. Walker , 299 F. App'x 273 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7582
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
IVEY WALKER,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:97-cr-00022-9; 3:02-cv-00066)
Submitted: September 10, 2008 Decided: October 31, 2008
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge,
and James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, Amy E. Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellant. Andrew B. Banzhoff, DEVEREUX & BANZHOFF,
P.L.L.C., Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After his drug-related convictions and life sentence were
affirmed by this court on direct appeal, see United States v.
Mackins, 315 F.3d 399 (4th Cir. 2003), Ivey Walker filed a
petition for relief under 28 U.S.C.A. § 2255. The district
court rejected Walker’s challenges to his convictions, but
reduced Walker’s life sentence to 240 months’ imprisonment. We
vacate the sentence and remand with instructions that the
district court re-impose the original sentence.
I.
Ivey Walker and others, including Alonzo Mackins and Willie
Mackins, were tried together and convicted of various drug-
related offenses. The sentencing took place in October 1999,
well before the issuance of the Supreme Court’s opinion in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Counsel for Willie
Mackins raised a Sixth-Amendment objection to his sentence being
based on drug quantities not found by the jury. The attorneys
for Walker and Alonzo Mackins objected to the drug quantities
set out in the pre-sentence report, but they did not join in
Willie Mackins’s Sixth Amendment objection or otherwise object
to the sentencing on constitutional grounds. The district court
sentenced all three defendants to life imprisonment, a sentence
that was largely the product of the district court’s drug-
2
quantity determinations. Walker, Willie Mackins, and Alonzo
Mackins appealed their convictions and sentences.
While the direct appeal was pending before this court, the
Supreme Court issued its opinion in Apprendi. Apprendi and the
cases that followed it, of course, significantly changed the
legal framework in criminal cases. Among other things, we
concluded post-Apprendi that the threshold drug quantities set
forth in § 841 are elements of the drug offense that must be
alleged in an indictment and found by the jury. See United
States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc).
Walker and the Mackins brothers raised the Apprendi issue
on direct appeal. We concluded that Willie Mackins’s Sixth
Amendment objection at sentencing was sufficient to preserve the
Apprendi issue for appeal. Because the life sentence imposed
exceeded the sentence that could have been imposed based on the
findings of the jury alone, we vacated Willie Mackins’s sentence
and remanded for re-sentencing. See Mackins, 315 F.3d at 410.
As to Alonzo Mackins and Walker, however, we concluded
because they did not join in the Sixth Amendment objection made
by Willie Mackins at sentencing, their Apprendi claims would be
reviewed for plain error only. See Fed. R. Crim. P. 52(b).
Under plain error review, “we must affirm unless an appellant
can show that (1) an error was made, (2) it was plain, and (3)
it affected the appellant’s substantial rights.” United States
3
v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Even if we
determine that a plain error occurred, correction of the error
“lies within our discretion, which we do not exercise unless the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
With regard to Walker and Alonzo Mackins’s Apprendi claim,
we found plain error in their sentences, but we declined to
exercise our discretion to recognize the error, concluding that
the evidence overwhelmingly established drug quantities
sufficient to support the life sentences they received:
Even a cursory review of the record reveals that the
conspiracy charged here indisputably involved
quantities of cocaine and cocaine base far in excess
of the minimum amounts necessary to sustain the
sentences pursuant to 21 U.S.C.A. § 841(b)(1)(A). As
in [United States v. Cotton, 535 U.S. 625 (2002)], the
evidence as to quantity was indeed “overwhelming” and
“essentially uncontroverted.” Accordingly, Cotton
mandates the conclusion that, even if the error here
affected Alonzo Mackins’ and Ivey Walker’s substantial
rights, it does not seriously affect the fairness,
integrity, or public reputation of judicial
proceedings so as to warrant notice.
Mackins, 315 F.3d at 408.
Walker thereafter filed this § 2255 petition raising
various claims of ineffective assistance of counsel, including a
claim that his attorney was ineffective for not joining in the
Sixth-Amendment objection to sentencing made by counsel for
Willie Mackins. The district court summarily rejected some of
4
Walker’s claims, but held a hearing to address others, including
the Apprendi claim.
The district court concluded that counsel’s failure to join
in the Sixth-Amendment objection was the product of a reasonable
sentencing strategy and that Walker’s life sentence thus was not
the result of constitutionally ineffective assistance of
counsel. 1 Despite rejecting the ineffective-assistance-of-
counsel claim, the district court nonetheless determined that
Walker was entitled to re-sentencing. The court concluded that
that our decision on direct appeal that Walker was not entitled
to relief under plain error review was inconsistent with this
court’s later decision in United States v. Hughes, 401 F.3d 540(4th Cir. 2005), a post-Booker case where we granted relief on
direct appeal under plain error review. The district court
stated that it was “unable to divine any difference between
[Walker’s] case and that of Hughes,” J.A. 320, and the court
held that Walker was entitled to relief from the life sentence
under Hughes. The district court also grounded its decision on
non-constitutional grounds, concluding that Walker’s sentence
was “the result of a non-constitutional error which involves ‘a
fundamental defect which inherently results in a complete
miscarriage of justice’ or is ‘inconsistent with the rudimentary
1
Walker does not challenge that conclusion on appeal.
5
demands of fair procedure.’” J.A. 324. The district court
therefore vacated Walker’s sentence and re-sentenced him to
twenty years.
II.
The government appeals, arguing, among other things, that
the district court erred by granting Walker relief on grounds
that had been rejected by this court on direct appeal. We
agree.
Absent a change in the law, a prisoner cannot relitigate in
collateral proceedings an issue rejected on direct appeal. See,
e.g., United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir.
2004) (“Because the Defendants have not pointed to any change in
the law that warrants our reconsideration of these claims, we
agree with the district court that they cannot relitigate these
issues.”); Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976) (per curiam) (explaining that criminal defendant
cannot “recast, under the guise of collateral attack, questions
fully considered by this court [on direct appeal]”). We agree
with the government that there has been no change in our
treatment of Apprendi errors since Walker’s Apprendi claim was
rejected on direct appeal.
As noted above, this court rejected Walker’s Apprendi claim
on plain error review after concluding that the evidence
6
presented at trial overwhelmingly established drug quantities
sufficient to support the life sentence imposed. In Hughes, the
case that the district court believed was inconsistent with our
approach in Walker’s direct appeal, we found that an Apprendi-
Booker 2 sentencing error had occurred. Without discussing the
nature and quality of the evidence presented at trial, the
Hughes court determined that the standards for correcting plain
error were satisfied, and we vacated and remanded for re-
sentencing under plain error review. See Hughes, 401 F.3d at
547-56.
The most that can be inferred from the Hughes court’s
failure to discuss the nature of the trial evidence is that the
evidence was less than overwhelming and therefore did not
provide a basis for the court to decline to correct the plain
sentencing error. The Hughes court’s silence about the nature
of the evidence in that case, however, simply does not mean, as
the district court concluded, that Apprendi-Booker sentencing
errors must always be corrected, without regard to what was
established by the evidence presented at trial. We made that
point explicitly in United States v. Smith, 441 F.3d 254 (4th
Cir. 2006), where we held that if there is overwhelming and
uncontroverted evidence supporting a sentence enhancement, we
2
United States v. Booker, 543 U.S. 220 (2005).
7
will not correct an Apprendi-Booker error on plain-error review.
See id. at 272-73 (“Even though the Sixth Amendment required
that the jury, rather than the trial judge, make the drug
quantity findings that increased [the defendant’s] sentence, the
evidence concerning drug quantity was overwhelming and
uncontroverted, even at sentencing. . . . There can be no
question that the jury, having found that the offenses were
committed, would have also determined that the offenses involved
the specific amounts charged in the indictment.”). Hughes,
therefore, does not undermine the approach to Apprendi errors
taken by this court when considering Walker’s direct appeal.
The district court therefore erred by concluding that
Hughes signaled a change in our treatment of Apprendi-Booker
sentencing errors. And because there has been no change in the
governing law since this court declined on direct appeal under
plain-error review to correct the Apprendi-Booker error in
Walker’s direct appeal, the district court likewise erred by
granting Walker the relief that this court had already denied on
direct appeal. 3 See Roane, 378 F.3d at 396 n.7; Boeckenhaupt,
537 F.3d at 1183.
3
As an alternative basis for re-sentencing Walker, the
district court pointed to Hill v. United States, 368 U.S. 424(1962), where the Supreme Court held that non-jurisdictional,
non-constitutional errors may be remedied through ' 2255 only if
the claimed error is Aa fundamental defect which inherently
(Continued)
8
III.
Walker argues in his response brief that he should have
been re-sentenced to five years instead of twenty years, because
the indictment alleged a conspiracy involving multiple kinds of
drugs, and the jury’s verdict did not indicate which drug was
the object of the conspiracy. See United States v. Rhynes, 196
F.3d 207, 239 (4th Cir. 1999) (holding that where there is a
general verdict on a count charging a conspiracy to distribute
multiple controlled substances, the district court may not
impose a sentence in excess of the statutory maximum for the
least punished drug on which the conspiracy could have been
based), vacated in part on other grounds, 218 F.3d 310 (4th Cir.
2000) (en banc). Because we rejected this argument on direct
appeal, see Mackins, 315 F.3d at 416, and there has been no
change in the governing law, Walker is foreclosed from re-
results in a complete miscarriage of justice@ or Aan omission
inconsistent with the rudimentary demands of fair procedure,@ and
the error Apresent[s] exceptional circumstances where the need
for the remedy afforded by the writ of habeas corpus is
apparent.@ Id. at 428 (internal quotation marks omitted).
Putting aside the question of whether the Hill standard is
applicable to Walker’s constitutionally based Apprendi claim,
our conclusion on direct appeal that allowing Walker’s life
sentence to stand “does not seriously affect the fairness,
integrity, or public reputation of judicial proceedings,”
Mackins, 315 F.3d at 408, necessarily means that the even-
stricter Hill standard cannot be satisfied.
9
asserting the issue on collateral review. See Roane, 378 F.3d
at 396 n.7.
IV.
Accordingly, for the foregoing reasons, we hereby vacate
the district court’s order resentencing Walker and we remand
with instructions that the district court re-impose the original
sentence of life imprisonment.
VACATED AND REMANDED
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